NLRB Affirms Decision Requiring Employers to Allow Employees to Use Work Email for Union Purposes . . . For Now

ISSUE: On March 27, 2017, the National Labor Relations Board ("NLRB" or "the Board"), in a 2-1 vote, upheld its decision in Purple Communications I, and thereby affirmed that employees have the right under the NLRA to use their employer's email systems for union organizing purposes and other communications related to employee wages, hours and working conditions. Issued in December of 2014, Purple Communications I overturned the Board's 2007 decision in Register Guard, which held that an employer could prohibit employees from using the employer’s email system for otherwise NLRA-protected communications, without providing a business justification, so long as the employer’s ban was not applied discriminatorily. Under Purple Communications I, employees who are provided access to their employer’s email systems for their work may presumptively use their employer’s email systems on their non-work time for Section 7 purposes (i.e., to communicate with respect to unions or their wages, hours and working conditions). An employer can overcome the presumption only if it can establish "special circumstances" that justify a total ban on non-work use of email "to maintain production and discipline."

Both in Purple Communications I, and the Board's recent decision upholding it, Acting Chairman Phillip Miscimarra (who was recently appointed to the role of Chairman by President Trump) issued scathing dissents regarding the Purple Communications I standard, taking particular issue with its impact on employers' property rights over their communication systems and the challenges of determining whether certain communications occurred during working or non-working time. Chairman Miscimarra has also advocated for the Board's return to the Register Guard standard in both decisions.

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IMPACT: The Board currently has two vacancies that President Trump is expected to soon fill with Republican appointees, which will shift the Board's partisan majority from Democrat to Republican. When this occurs, employers should expect that the Board may again revisit Purple Communications I and potentially return to Register Guard standard in light of Chairman Miscimarra's position on the issue. Employers should therefore keep an eye on the upcoming Board appointments and be prepared to review/revise their employment policies based on the changes likely to come from the Board's shift in partisan makeup.

In the meantime, employers should be mindful of current Board law and tread carefully when enforcing email policies or disciplining employees who use Company email resources to communicate regarding terms and conditions of employment.

For more information, please contact your local Quarles & Brady attorney or this member of our employee benefits group:

• Mike Aldana: (414) 277-5151 / michael.aldana@quarles.com 

NLRB Board Decisions (365 NLRB No. 50 -- March 24, 2017 Purple CommunicationsDecision); (361 NLRB No. 126 -- December 11, 2014 Decision); Register Guard (351 NLRB 1110);and NLRB Won't Reverse Worker Email Usage Standard, by Vin Gurrieri of Law360.